NSA Spying Scandal: What If?

Andrew McCarthy asks an interesting question: What if President Bush had secured FISA warrants and then run the exact same surveillance program?

Would that FISA compliance have made it all okay? Do you really think there would have been no scandal? Or, in this climate that it has so tirelessly labored to create, do you think the Times would simply have weaved a different scandal?


It writes itself:

Bush Secretly Conducted Large-scale Spying in U.S. After 9/11, Officials Say

WASHINGTON, Dec. 15 — Months after the Sept. 11 attacks, President Bush secretly directed the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity.

According to intelligence officials and others familiar with the domestic spying program, who spoke on condition of anonymity because of their growing unease, there was little or no evidence that those targeted for surveillance had engaged in any criminal conduct. Nevertheless, under pressure from Vice President Cheney and other administration hawks, sources said the NSA carried out the covert operation with the approval of a secret court created under an obscure 1978 law, the Foreign Intelligence Surveillance Act, or “FISA.”

A long-established legal framework requires the government to demonstrate to a federal judge probable cause that a serious crime has been committed before electronic surveillance of telephone or email communications may be permitted. Officials privately concede, however, that the Bush administration skirted this constitutional requirement. Instead, it resorted to the FISA court, whose proceedings are shrouded in such secrecy that it convenes in a sound-proof room inside the Justice Department rather than an independent courthouse open to the public.

There, specially selected judges met alone with prosecutors chosen by then-Attorney General John Ashcroft and reviewed wiretap applications. No showing of criminal probable cause was required for the domestic spying.

A fair point. McCarthy is probably right that opponents of the President would have pounced on the civil liberties angle rather than the FISA/legal angle. Indeed, the NYT story that spawned all this noted that the “senior officials” who leaked information about the program were concerned about 4th Amendment issues, not FISA.

That said, the nature of the discussion would be far different. Many reasonable Bush opponents, such as Kevin Drum, have said they basically supported the program itself but not the apparent disregard for the law by which it was accomplished. Further, Republicans like Steven Taylor, who are also deeply concerned about the legal and separation of power angles, would be aboard.

I should reemphasize, however, that McCarthy’s basic premise is quite likely faulty. Every indication so far points to the program being a data mining operation of a nature to fall outside the purview of FISA. Getting a FISA warrant is only possible if one is targetting specific individuals; if one is scooping up huge amounts of data and sifting it through computer programs looking for complex patterns, one lacks the a priori knowledge required for even the least stringent warrants.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. ken says:

    So James, spying on one American without a warrent is bad. But spying on all Americans without a warrent is just fine?

  2. James Joyner says:

    So ken, you really don’t think there’s a difference between highly trained intelligence agents trying to protect the nation from terrorist attacks and shady private eyes looking for cheating spouses?

  3. anjin-san says:


    You REALLY think the government won’t abuse this kind of power? If not now, then at some point in the future?

  4. McGehee says:

    Government power is a necessary evil, I think we all agree on that. The disagreement seems to be over when it’s more necessary than evil, and vice versa.

    Being that we’re at war (and at the risk of reviving the mouldering zombie of a debate over whether the words “declaration of war” are required), I’m of the opinion that “necessary” is in the ascendant.

    When it ceases to be, the populace will no longer support these powers.

  5. Herb says:

    Once again, Ken and Anjin, just don’t get it.

    Both seen to favor having several thousand Americans die right here in the US, rather that have someone listen to their “Important Conversations” while telling every other American to go to hell with thier personal complaints about evesdropping.

    It makes one wonder what both of these guys have to hide.